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§ 3.10Dependency and indemnity compensation rate for a surviving spouse.

(a)General determination of rate. When VA grants a surviving spouse entitlement to DIC, VA will determine the rate of the benefit it will award. The rate of the benefit will be the total of the basic monthly rate specified in paragraph (b) or (d) of this section and any applicable increases specified in paragraph (c) or (e) of this section.

(b)Basic monthly rate. Except as provided in paragraph (d) of this section, the basic monthly rate of DIC for a surviving spouse will be the amount set forth in 38 U.S.C. 1311(a)(1).

(c)Section 1311(a)(2) increase. The basic monthly rate under paragraph (b) of this section shall be increased by the amount specified in 38 U.S.C. 1311(a)(2) if the veteran, at the time of death, was receiving, or was entitled to receive, compensation for service-connected disability that was rated by VA as totally disabling for a continuous period of at least eight years immediately preceding death. Determinations of entitlement to this increase shall be made in accordance with paragraph (f) of this section.

(d)Alternative basic monthly rate for death occurring prior to January 1, 1993. The basic monthly rate of DIC for a surviving spouse when the death of the veteran occurred prior to January 1, 1993, will be the amount specified in 38 U.S.C. 1311(a)(3) corresponding to the veteran's pay grade in service, but only if such rate is greater than the total of the basic monthly rate and the section 1311(a)(2) increase (if applicable) the surviving spouse is entitled to receive under paragraphs (b) and (c) of this section. The Secretary of the concerned service department will certify the veteran's pay grade and the certification will be binding on VA. DIC paid pursuant to this paragraph may not be increased by the section 1311(a)(2) increase under paragraph (c) of this section.

(e)Additional increases. One or more of the following increases may be paid in addition to the basic monthly rate and the section 1311(a)(2) increase.

(1)Increase for children. If the surviving spouse has one or more children under the age of 18 of the deceased veteran (including a child not in the surviving spouse's actual or constructive custody, or a child who is in active military service), the monthly DIC rate will be increased by the amount set forth in 38 U.S.C. 1311(b) for each child.

(2)Increase for regular aid and attendance. If the surviving spouse is determined to be in need of regular aid and attendance under the criteria in § 3.352 or is a patient in a nursing home, the monthly DIC rate will be increased by the amount set forth in 38 U.S.C. 1311(c).

(3)Increase for housebound status. If the surviving spouse does not qualify for the regular aid and attendance allowance but is housebound under the criteria in § 3.351(f), the monthly DIC rate will be increased by the amount set forth in 38 U.S.C. 1311(d).

(4) For a two-year period beginning on the date entitlement to dependency and indemnity compensation commenced, the dependency and indemnity compensation paid monthly to a surviving spouse with one or more children below the age of 18 shall be increased by the amount set forth in 38 U.S.C. 1311(f), regardless of the number of such children. The dependency and indemnity compensation payable under this paragraph is in addition to any other dependency and indemnity compensation payable. The increase in dependency and indemnity compensation of a surviving spouse under this paragraph shall cease beginning with the first month commencing after the month in which all children of the surviving spouse have attained the age of 18.

(f)Criteria governing section 1311(a)(2) increase. In determining whether a surviving spouse qualifies for the section 1311(a)(2) increase under paragraph (c) of this section, the following standards shall apply.

(1)Marriage requirement. The surviving spouse must have been married to the veteran for the entire eight-year period referenced in paragraph (c) of this section in order to qualify for the section 1311(a)(2) increase.

(2)Determination of total disability. As used in paragraph (c) of this section, the phrase “rated by VA as totally disabling” includes total disability ratings based on unemployability (§ 4.16 of this chapter).

(3)Definition of “entitled to receive”. As used in paragraph (c) of this section, the phrase “entitled to receive” means that the veteran filed a claim for disability compensation during his or her lifetime and one of the following circumstances is satisfied:

(i) The veteran would have received total disability compensation for the period specified in paragraph (c) of this section but for clear and unmistakable error committed by VA in a decision on a claim filed during the veteran's lifetime; or

(ii) Additional evidence submitted to VA before or after the veteran's death, consisting solely of service department records that existed at the time of a prior VA decision but were not previously considered by VA, provides a basis for reopening a claim finally decided during the veteran's lifetime and for awarding a total service-connected disability rating retroactively in accordance with §§ 3.156(c) and 3.400(q)(2) of this part for the period specified in paragraph (c) of this section; or

(iii) At the time of death, the veteran had a service-connected disability that was continuously rated totally disabling by VA for the period specified in paragraph (c) of this section, but was not receiving compensation because:

(A) VA was paying the compensation to the veteran's dependents;

(B) VA was withholding the compensation under the authority of 38 U.S.C. 5314 to offset an indebtedness of the veteran;

(C) The veteran had not waived retired or retirement pay in order to receive compensation;

Effective Date: This rule is effective on March 19, 2015. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of March 19, 2015. Applicability Date: The provisions of this final rule shall apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. The Secretary does not intend for the provisions of this final rule to apply to claims that were pending before the Board of Veterans' Appeals ( i.e., certified for appeal to the Board of Veterans' Appeals on or before August 4, 2014), the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction.

38 CFR Parts 3 and 4

Summary

The Department of Veterans Affairs (VA) adopts as final, without change, an interim final rule amending its Schedule for Rating Disabilities (VASRD) dealing with mental disorders and its adjudication regulations that define the term “psychosis.” Outdated references are replaced with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Nomenclature used to refer to certain mental disorders is amended to conform to DSM-5. This rule also provides clarification of the applicability date.

2015-02-25; vol. 80 # 37 - Wednesday, February 25, 2015

80 FR 10001 - Automobile or Other Conveyance and Adaptive Equipment Certificate of Eligibility for Veterans or Members of the Armed Forces With Amyotrophic Lateral Sclerosis

Effective Date: This interim final rule is effective February 25, 2015. Comment Date: Comments must be received by VA on or before April 27, 2015. Applicability Date: The provisions of this regulatory amendment apply to all applications for a certificate of eligibility for an automobile or other conveyance and adaptive equipment allowance pending before VA on or received after February 25, 2015.

38 CFR Part 3

Summary

The Department of Veterans Affairs (VA) is amending its adjudication regulation regarding certificates of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment. The amendment authorizes automatic issuance of a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment to all veterans with service-connected amyotrophic lateral sclerosis (ALS) and members of the Armed Forces serving on active duty with ALS.

The Department of Veterans Affairs (VA) amends its adjudication regulations and the appeals regulations and rules of practice of the Board of Veterans' Appeals (Board) to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. This rulemaking also eliminates the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase or to reopen while retaining the retroactive effective date assignment for awards for claims for increase which are filed on a standard form within 1 year of such hospitalization, examination, or treatment. This final rule also implements the concept of an intent to file a claim for benefits, which operates similarly to the current informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. Finally, these amendments will provide that VA will accept an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction(AOJ) as a Notice of Disagreement (NOD) only if it is submitted on a standardized form provided by VA for the purpose of appealing the decision, in cases where such a form is provided. Although a standardized NOD form will only initially be provided in connection with decisions on compensation claims, VA may require a standard NOD form for any type of claim for VA benefits if, in the future, it develops and provides a standardized NOD form for a particular benefit. The purpose of these amendments is to improve the quality and timeliness of the processing of veterans' claims for benefits by standardizing the claims and appeals processes through the use of forms.

2014-09-12; vol. 79 # 177 - Friday, September 12, 2014

79 FR 54608 - Special Home Adaptation Grants for Members of the Armed Forces and Veterans With Certain Vision Impairment

Effective Date: This final rule is effective September 12, 2014. Applicability Date: The provisions of this final rule apply to all applications for benefits that are received by VA on or after October 1, 2012, the statutory effective date of the amendment, or that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on or after October 1, 2012.

38 CFR Part 3

Summary

The Department of Veterans Affairs (VA) is issuing a final rule to amend its adjudication regulations regarding special home adaptation grants for members of the Armed Forces and veterans with certain vision impairment. This regulatory amendment is necessary to conform the regulations to changes mandated in the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012.

This document adopts as a final rule the Department of Veterans Affairs' (VA) proposal to amend its regulations on adjudication of VA benefit claims, representation of claimants, and the Board of Veterans' Appeals rules of practice. Specifically, these amendments implement section 212 of the Veterans' Benefits Improvement Act of 2008, which allows an eligible survivor to substitute for a deceased claimant in the decedent's pending claim or appeal of a decision on a claim. This final rule addresses eligibility for substitution and the procedures applicable to requests to substitute in a claim that is pending before a VA agency of original jurisdiction or an appeal that is pending before the Board of Veterans' Appeals.

Effective date: August 14, 2014. Applicability date: The provisions of this regulatory amendment apply to all applications for SAH pending before VA on or received after December 3, 2013.

38 CFR Part 3

Summary

The Department of Veterans Affairs (VA) amended by interim final rule its adjudication regulation regarding specially adapted housing (SAH) to authorize automatic issuance of a certificate of eligibility for SAH to all veterans and active-duty servicemembers with service-connected amyotrophic lateral sclerosis (ALS) rated totally disabling under the VA Schedule for Rating Disabilities. This document adopts as a final rule, without change, the interim final rule published in the Federal Register on December 3, 2013.

Effective Date: This interim final rule is effective August 4, 2014. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of August 4, 2014. Comment Date: Comments must be received on or before October 3, 2014. Applicability Date: The provisions of this interim final rule shall apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after the effective date of this interim final rule. The Secretary does not intend for the provisions of this interim final rule to apply to claims that have been certified for appeal to the Board of Veterans' Appeals or are pending before the Board of Veterans' Appeals, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit.

38 CFR Parts 3 and 4

Summary

The Department of Veterans Affairs (VA) is amending the portion of its Schedule for Rating Disabilities (VASRD) dealing with mental disorders and its adjudication regulations that define the term “psychosis.” The VASRD refers to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and VA's adjudication regulations refer to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (DSM-IV-TR). DSM-IV and DSM-IV-TR were recently updated by issuance of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). This rulemaking will remove outdated DSM references by deleting references to DSM-IV and DSM-IV-TR and replacing them with references to DSM-5. Additionally, this rulemaking will update the nomenclature used to refer to certain mental disorders to conform to DSM-5.

This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.

Effective Date: This rule is effective on March 19, 2015. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of March 19, 2015. Applicability Date: The provisions of this final rule shall apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. The Secretary does not intend for the provisions of this final rule to apply to claims that were pending before the Board of Veterans' Appeals ( i.e., certified for appeal to the Board of Veterans' Appeals on or before August 4, 2014), the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction.

38 CFR Parts 3 and 4

Summary

The Department of Veterans Affairs (VA) adopts as final, without change, an interim final rule amending its Schedule for Rating Disabilities (VASRD) dealing with mental disorders and its adjudication regulations that define the term “psychosis.” Outdated references are replaced with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). Nomenclature used to refer to certain mental disorders is amended to conform to DSM-5. This rule also provides clarification of the applicability date.

2015-02-25; vol. 80 # 37 - Wednesday, February 25, 2015

80 FR 10001 - Automobile or Other Conveyance and Adaptive Equipment Certificate of Eligibility for Veterans or Members of the Armed Forces With Amyotrophic Lateral Sclerosis

Effective Date: This interim final rule is effective February 25, 2015. Comment Date: Comments must be received by VA on or before April 27, 2015. Applicability Date: The provisions of this regulatory amendment apply to all applications for a certificate of eligibility for an automobile or other conveyance and adaptive equipment allowance pending before VA on or received after February 25, 2015.

38 CFR Part 3

Summary

The Department of Veterans Affairs (VA) is amending its adjudication regulation regarding certificates of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment. The amendment authorizes automatic issuance of a certificate of eligibility for financial assistance in the purchase of an automobile or other conveyance and adaptive equipment to all veterans with service-connected amyotrophic lateral sclerosis (ALS) and members of the Armed Forces serving on active duty with ALS.

The Department of Veterans Affairs (VA) proposes to amend its regulations governing entitlement to VA pension to maintain the integrity of the pension program and to implement recent statutory changes. The proposed regulations would establish new requirements pertaining to the evaluation of net worth and asset transfers for pension purposes and would identify those medical expenses that may be deducted from countable income for VA's needs-based benefit programs. The intended effect of these changes is to respond to recent recommendations made by the Government Accountability Office (GAO), to maintain the integrity of VA's needs-based benefit programs, and to clarify and address issues necessary for the consistent adjudication of pension and parents' dependency and indemnity compensation claims. We also propose to implement statutory changes pertaining to certain pension beneficiaries who receive Medicaid-covered nursing home care, as well as a statutory income exclusion for certain disabled veterans and a non-statutory income exclusion pertaining to annuities.

2014-12-02; vol. 79 # 231 - Tuesday, December 2, 2014

79 FR 71366 - Additional Compensation on Account of Children Adopted Out of Veteran's Family

The Department of Veterans Affairs (VA) proposes to amend its adjudication regulations to clarify that a veteran will not receive the dependent rate of disability compensation for a child who is adopted out of the veteran's family. This action is necessary because applicable VA adjudication regulations are currently construed as permitting a veteran, whose former child was adopted out of the veteran's family, to receive the dependent rate of disability compensation for the adopted-out child, which constitutes an unwarranted award of benefits not supported by the applicable statute and legislative history.

The Department of Veterans Affairs (VA) amends its adjudication regulations and the appeals regulations and rules of practice of the Board of Veterans' Appeals (Board) to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. This rulemaking also eliminates the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase or to reopen while retaining the retroactive effective date assignment for awards for claims for increase which are filed on a standard form within 1 year of such hospitalization, examination, or treatment. This final rule also implements the concept of an intent to file a claim for benefits, which operates similarly to the current informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. Finally, these amendments will provide that VA will accept an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction(AOJ) as a Notice of Disagreement (NOD) only if it is submitted on a standardized form provided by VA for the purpose of appealing the decision, in cases where such a form is provided. Although a standardized NOD form will only initially be provided in connection with decisions on compensation claims, VA may require a standard NOD form for any type of claim for VA benefits if, in the future, it develops and provides a standardized NOD form for a particular benefit. The purpose of these amendments is to improve the quality and timeliness of the processing of veterans' claims for benefits by standardizing the claims and appeals processes through the use of forms.

2014-09-12; vol. 79 # 177 - Friday, September 12, 2014

79 FR 54608 - Special Home Adaptation Grants for Members of the Armed Forces and Veterans With Certain Vision Impairment

Effective Date: This final rule is effective September 12, 2014. Applicability Date: The provisions of this final rule apply to all applications for benefits that are received by VA on or after October 1, 2012, the statutory effective date of the amendment, or that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit on or after October 1, 2012.

38 CFR Part 3

Summary

The Department of Veterans Affairs (VA) is issuing a final rule to amend its adjudication regulations regarding special home adaptation grants for members of the Armed Forces and veterans with certain vision impairment. This regulatory amendment is necessary to conform the regulations to changes mandated in the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012.

This document adopts as a final rule the Department of Veterans Affairs' (VA) proposal to amend its regulations on adjudication of VA benefit claims, representation of claimants, and the Board of Veterans' Appeals rules of practice. Specifically, these amendments implement section 212 of the Veterans' Benefits Improvement Act of 2008, which allows an eligible survivor to substitute for a deceased claimant in the decedent's pending claim or appeal of a decision on a claim. This final rule addresses eligibility for substitution and the procedures applicable to requests to substitute in a claim that is pending before a VA agency of original jurisdiction or an appeal that is pending before the Board of Veterans' Appeals.

Effective date: August 14, 2014. Applicability date: The provisions of this regulatory amendment apply to all applications for SAH pending before VA on or received after December 3, 2013.

38 CFR Part 3

Summary

The Department of Veterans Affairs (VA) amended by interim final rule its adjudication regulation regarding specially adapted housing (SAH) to authorize automatic issuance of a certificate of eligibility for SAH to all veterans and active-duty servicemembers with service-connected amyotrophic lateral sclerosis (ALS) rated totally disabling under the VA Schedule for Rating Disabilities. This document adopts as a final rule, without change, the interim final rule published in the Federal Register on December 3, 2013.

Effective Date: This interim final rule is effective August 4, 2014. The incorporation by reference of certain publications listed in the rule is approved by the Director of the Federal Register as of August 4, 2014. Comment Date: Comments must be received on or before October 3, 2014. Applicability Date: The provisions of this interim final rule shall apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after the effective date of this interim final rule. The Secretary does not intend for the provisions of this interim final rule to apply to claims that have been certified for appeal to the Board of Veterans' Appeals or are pending before the Board of Veterans' Appeals, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit.

38 CFR Parts 3 and 4

Summary

The Department of Veterans Affairs (VA) is amending the portion of its Schedule for Rating Disabilities (VASRD) dealing with mental disorders and its adjudication regulations that define the term “psychosis.” The VASRD refers to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and VA's adjudication regulations refer to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition Text Revision (DSM-IV-TR). DSM-IV and DSM-IV-TR were recently updated by issuance of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). This rulemaking will remove outdated DSM references by deleting references to DSM-IV and DSM-IV-TR and replacing them with references to DSM-5. Additionally, this rulemaking will update the nomenclature used to refer to certain mental disorders to conform to DSM-5.